"notice"; also in line 4 from the last, after "possession," insert "or his representatives at the rate of" before "double"; also in line 4 from the last change "rents" to "value" after "yearly"; also at the end add "and shall also pay and remunerate all special damage whatever to which the person so kept out of possession may be subjected by reason of such holding over." Measure of damages for injuries to trees, etc. California, § 3346. For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken by the authority of highway officers for the purposes of a highway; in which cases the damages are a sum equal to the actual detriment. (Kerr's Cyc. Civ. Code.) Damages for firing woods. California, § 3346a. Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arkansas, Dig. of Stats. 1904 (Kirby), § 1698. b Colorado, Rev. Stats. 1908, § 2070. c Kansas, Gen. Stats. 1905 (Dassler), § 8742. a Missouri, Ann. Stats. 1906, § 2872. e New Mexico, Comp. Laws 1897, § 3222. North Dakota, Rev. Codes 1905, § 2067. 8 Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), § 2361; Comp. Laws 1909 (Snyder), § 2484. h South Dakota, Rev. Codes 1903, Pen. Code § 473. Washington, Code 1910 (Rem. & Bal.), § 5141. Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 4406. i a Arkansas, § 1698. If any person shall wilfully set on fire any woods, marshes or prairies, whether his own or not, so as thereby to occasion any damage to any other person, such person shall make satisfaction in double damages to the party injured, to be recovered by civil action. b Colorado, § 2070. If any person shall set on fire any woods or prairie, so as to damage any other person, such person shall make satisfaction for the damage to the party injured, to be recovered in an action before any court of competent jurisdiction. c Kansas, § 8742. If any person shall set on fire any woods, marshes or prai ries so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by civil action. d Missouri, § 2872, same as Arkansas § 1698. e New Mexico, § 3222, substantially same as Arkansas § 1698, except in line 2 after "shall" omit "wilfully" before "set on fire." f North Dakota, § 2067. If any person shall wilfully, negligently or carelessly set or cause to be set on fire any woods, marsh or prairie in this state, or if any person having made any camp or other fire, shall leave such fire without having thoroughly extinguished the same, So that the fire shall spread and burn any wood, marsh or prairie, the person guilty of setting or causing to set such fire or leaving such camp or other fire without having thoroughly extinguished the same, so that the fire shall not spread therefrom, is guilty of a misdemeanor, and upon conviction thereof is punishable by a fine not exceeding two hundred dollars or by imprisonment in the county jail not exceeding one year, or by both in the discretion of the court, and shall also be liable in a civil action to any person damaged by such fire to the amount of such damage. g Oklahoma, § 2361. Every person who negligently or carelessly sets on fire, or causes to be set on fire, any woods, marshes, or prairies, or who, having set the same on fire, or caused it to be done, negligently or carelessly, or without full precaution or efforts to prevent, permits it to spread beyond his control, shall, upon conviction, be fined not exceeding one hundred dollars and not less than ten dollars, and shall be liable to the injured parties for all damages occasioned thereby. One-half of such fine shall, when collected, go to the informer. h South Dakota, Pen. Code § 473, same as Oklahoma § 2361. ¡ Washington, § 5141. If any person shall for any lawful purpose kindle a fire upon his own land, he shall do it at such time and in such manner, and shall take such care of it to prevent it from spreading and doing damage to other persons' property, as a prudent and careful man would do, and if he fail so to do he shall be liable in an action to any person suffering damage thereby to the full amount of such damage. Damages for detriment caused by a duel. California, § 3347. If any person slays or permanently disables another person in a duel in this state, the slayer must provide for the maintenance of the widow or wife of the person slain or permanently disabled, and for the minor children, in such manner and at such cost, either by aggregate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the court. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6079. a Washington, Code 1910 (Rem. & Bal.), § 183. a Washington, 183. The widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the persons killing him, and * against the seconds and all aiders and Liability to pay debts of person slain or permanently disabled in duel. California, § 3348. If any person slays or permanently disables another person in a duel in this state, the slayer is liable for and must pay all debts of the person slain or permanently disabled. (Kerr's Cyc. Civ. Code.) The following statute treats of the same subject as the foregoing: § 447. ANNOTATIONS.-Damages. 1. Redress in law and equity.-Distinctions. 2. "Proximate cause" defined. 3, 4. Future earnings as element of damages.-Loss of time. 5, 6. Special damages. 7. Speculative damages. 8. Liquidated damages. 9. Demand for damages not necessary. 10. Breach of contract to buy.-Measure of damages. 11. Pleading damages. 12. Allowance of interest. 13. Personal injuries caused by known defect. 14. Punitive damages. 15, 16. Exemplary damages.-For malicious ejection. 17, 18. "Wilful."-Meaning construed. 19. Allegation as basis for exemplary damages. 1. Redress in law and equity.-Distinctions. -Distinctions between kinds of redress given by law and equity are not sought to be obliterated by the California statute, although courts of law and equity are merged into one, and a party is awarded such legal or equitable redress as the simple pleading of ultimate facts shows him to be entitled to: Glock v. Howard & W. C. Co., 123 Cal. 1, 6, 55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199. 2. "Proximate cause" defined.-"Proximate cause" means that efficient cause which necessarily sets other causes in operation. Causes which are merely incidental or instruments of some other controlling agency are not proximate: Smith v. Los Angeles & P. R. Co., 98 Cal. 210, 214, 33 Pac. 53; Westwater v. Grace Church, 140 Cal. 339, 342, 73 Pac. 1055. See Friend & T. L. Co. v. Miller, 67 Cal. 464, 467, 8 Pac. 40; Cederberg v. Robison, 100 Cal. 93, 97-99, 34 Pac. 625; Martin v. Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151; Shoemaker V. Acker, 116 Cal. 239, 244, 48 Pac. 62; Crow v. San Joaquin etc. C. & I. Co., 130 Cal. 309, 314, 62 Pac. 562, 1058. 3. Future earnings as element of dam. ages. Under an averment in the petition, "that, because of the premanency of her said injuries, she is and ever will be incapacitated from earning her livelihood at her chosen and established trade, to wit, that of seamstress and dressmaker"; held, that the defendant was sufficiently notified by this averment to prepare to meet the issue of earnings lost from the date of the injury of the plaintiff in an action to recover for such injuries: Hitchings v. City of Maryville, 134 Mo. App. 712, 115 S. W. 473, 475, citing Wilbur v. Railway, 110 Mo. App. 689, 85 S. W. 671. 4. An averment of loss of time in an action to recover for injuries caused by the reckless driving of an automobile, held equivalent to an averment of loss of earnings: Scholl v. Grayson (Mo. App.), 127 S. W. 415, 417. See Slaughter v. Railroad, 116 Mo. 269, 275, 23 S. W. 760. 5. Special damages which are the natural, but not the necessary, result of the injury complained of must be specially alleged: O'Brien v. Quinn, 35 Mont. 441, 90 Pac. 166, 168; Root v. Butte etc. R. Co., 20 Mont. 354, 51 Pac. 155. 6. Special damages are those which are awarded upon the theory that parties who contracted with full knowledge of facts, circumstances, and objects of the agreement may well be supposed to have had in contemplation all the proximate and natural results flowing from its breach: Wallace v. Ah Sam, 71 Cal. 197, 201, 12 Pac. 46, 60 Am. Rep. 534. 7. Speculative damages are not recoverable. The verdict should be confined to such detriment only as was proximately caused by the wrongful act: Hawthorne v. Siegel, 88 Cal. 159, 163166, 25 Pac. 1114, 22 Am. St. Rep. 291. 8. Liquidated damages will be allowed in accordance with the stipulation of the parties if it appears that the sum named was not intended as a mere forfeiture or penalty, even if the agreement seem to have been made improvidently: Streeter v. Rush, 25 Cal. 67, 71; Muldoon v. Lynch, 66 Cal. 536, 539, 540, 6 Pac. 417. 9. Demand for damages is not necessary in order to maintain an action for damages or to abate a nuisance: Wilhite v. Billings & E. M. P. Co., 39 Mont. 1, 101 Pac. 168, 169. 10. Breach of contract to buy.-Measure of damages.-Upon a breach of contract to purchase goods by the buyer, the general rule is that the measure of damages is the excess of the price fixed by the contract over the market value of the goods at the time and place of the delivery: Kirchman v. Tuffli Bros. (Ark.), 122 S. W. 239, 241, and cases there cited. 11. Pleading damages. Where the complaint conforms to the statute in regard to the estimate and measure of damages in case of a breach of contract, it is not necessary to be more definite or specific in alleging items of damage: Kirchman V. Tuffli Bros. (Ark.), 122 S. W. 239, 241. 12. Allowance of interest.-In a suit for breach of contract, the court may in a proper case allow the plaintiff interest upon the amount of damages sustained from the date of filing the complaint: Cutting F. P. Co. v. Canty, 141 Cal. 692, 697, 75 Pac. 564. 13. Personal injuries caused by known defect. Where a defective article was sold under the representation that it was safe for use, but the vendor knew it to be dangerous, he is liable for personal injuries caused by reason of such known defect to any person who used the article, notwithstanding the fact that there was no privity of contract between them: Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 52 Am. St. Rep. 146, 31 L. R. A. 220. 14. Punitive damages are not assessable as a matter of right: Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 N. W. 331, 336; Robinson v. Superior R. T. Co., 94 Wis. 345, 68 N. W. 961, 59 Am. St. Rep. 897, 34 L. R. A. 205. 15. Exemplary damages can be recovered only where the act complained of is the result of wilful misconduct: Yerian v. Linkletter, 80 Cal. 135, 138, 22 Pac. 70. 16. Exemplary damages for malicious ejection.-A railroad company is not liable in exemplary damages for any malicious or wanton conduct of its conductor in wrongfully ejecting а passenger from a train, unless the act complained of was done with the authority, express or implied, of such company, or was subsequently adopted by it: Warner v. Southern Pacific Co., 113 Cal. 105, 106, 45 Pac. 187, 54 Am. St. Rep. 327. 17. "Wilful" does not imply malice or wrong towards the other party, but is synonymous with "intentional": Benkert v. Benkert, 32 Cal. 467, 470. See Thornburg v. Thornburg, 18 W. Va. 526. 18. The word "wilful" is not necessarily technical. Ordinary words shall be construed "according to the context and the approved usage of the language": Towle v. Matheus, 130 Cal. 574, 577, 62 Pac. 1064. 19. An allegation as a basis for exemplary damages within section 3294 of the California Civil Code is sufficient which reads as follows: "That the defendant refused to comply with said demand and refused to supply the plaintiff with water unless the plaintiff would repay to the defendant the amount paid by defendant to plaintiff for the right of way across his lands for the said ditch or canal; that the said refusal of the defendant was wanton, wilful, malicious, and without any right whatever, and was made for the purpose of extorting from this plaintiff the amount of money paid by defendant to plaintiff for said right of way, and for Form No. 1052. For penalty for violation of ordinance of board Page 1744 1753 1753 1753 1754 Form No. 1053. For penalty for sale of liquors without license § 448. CODE PROVISIONS. Relief in case of forfeiture. California, § 3275. Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, wilful, or fraudulent breach of duty. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6039. North Dakota, Rev. Codes 1905, § 6555. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), § 2722; Comp. Laws 1909 (Snyder), § 2880. South Dakota, Rev. Codes 1903, C. C. § 2285. Penalty for overcharging. California, § 504. Any corporation, or agent or employee thereof. demanding or charging a greater sum of money for fare on the cars of [a] street railroad than that fixed, as provided in this title, [regulating street railroad corporations generally,] forfeits to the person from whom such sum is received, or who is thus overcharged, the sum of two hundred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. (Kerr's Cyc. Civ. Code.) |
